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Opinion piece: It's not just Assange, these are our rights

26 February 2020
 

Opinion piece by Law Council of Australia President, Pauline Wright - published in The Australian, Wednesday, 26 February 2020.

WikiLeaks case is highlighting a deeply disturbing attack on the justice system. 

The fate of Julian Assange has been the subject of intense global debate ever since the publication of classified diplomatic and military documents on his whistleblowing website, WikiLeaks.

But regardless of your views on Assange, there is a deeply disturbing aspect of the extradition hearing that began this week.

There was evidence in a Spanish court late last year that a security company hired by the Ecuadorean embassy illegally recorded Assange's meetings with his lawyers and passed on these recordings to US intelligence services. During those meetings, Assange prepared his legal defence against an extradition request from the US.

The evidence of the recorded meetings forms a key part of Assange's case to resist extradition.

On Monday, his lawyers told a British court that espionage charges against him were politically motivated and aimed at discouraging whistleblowing and a free press.

Those charges carry a maximum sentence of 170 years.

Under the British-US extradition treaty, extradition cannot be granted for political offences.

Whether it is Assange or any other Australian citizen, it is so vital that the process is not only fair but seen to be fair.

Our justice system relies on the ability of people to have private discussions with their lawyers so they can receive proper advice on their rights and obligations, whether it is a criminal charge, a tax matter or just a simple property conveyance.

A full understanding by the client of their rights and responsibilities is essential given our complex and ever-changing laws. If the claims in the Assange case are true, it is another example of the accelerating erosion of a fundamental protection and pillar of our legal system, legal professional privilege.

Back home, the Lawyer X scandal has raised concerns about the robustness of the protection provided by this privilege for confidential communications between lawyer and client.

But this case overshadows a more incremental incursion by legislation, law enforcement and security agencies and regulators of the confidentiality of these communications. As the High Court case last year of Glencore International AG & Ors v Commissioner of Taxation of the Commonwealth of Australia & Ors highlighted, changing technologies and business practices are also posing new threats.

In that case the Australian Taxation Office had, by virtue of a hacker publishing stolen documents on the internet, obtained various documents in respect of Glencore.

The High Court recognised legal professional privilege was a fundamental right within our legal system but only to the extent that it functioned as an immunity from production and to resist disclosure. It does not support any right to restrain the use of a privileged document once it has come into the hands of a third party, even in circumstances where it was stolen.

While the court's affirmation of privilege was welcome, the decision highlighted a gap in the law that will need to be addressed in an age of cyber-security threats. Unfortunately, the importance of the privilege to many Australians is often understood only when it is absent. When breached, it jeopardises convictions and undermines public confidence in the courts, law enforcement, criminal justice and the legal profession.

Equally, inappropriate claims of privilege can be just as damaging as flagrant breaches of privilege, in obstructing the course of justice and undermining trust in the profession.

But incidents of inappropriate claims of privilege should not be used as an excuse by law enforcement and security agencies and regulators to try to water down the fundamental right that a client has to preserve the confidentiality of privileged communications between the client and the lawyer.

Australians should never take the protection afforded by the law for granted and need to be vigilant against any incursions.
 

Pauline Wright
President, Law Council of Australia

 

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